JITENDRA MULLICK Vs. HAJI HAFIZ ALLA BUX

JUDGEMENT

(1.) The petitioner has obtained a succession certificate entitling him to recover the debt due to Mahammad Safi, deceased, who was surety in this Court in a sum of Rs. 500 for a judgment-debtor, Haji Hafiz Alla Bux. Both the surety and the judgment-debtor have since died. On 6 December 1935, a decree was passed against the judgment-debtor. On 2nd July 1936, the judgment-debtor was arrested in execution of the decree and brought before the Court. The judgment-debtor informed the Court that he would apply to be adjudicated insolvent and Mahammad Safi was accepted as his surety for the sum of Rs. 500. On 22nd July 1936, the judgment-debtor stated to the Court that Mahammad Safi who was present in Court would stand surety for him for Rs. 500 and it was ordered: That the hearing of this matter do stand over till Friday, 24 July 1936, the defendant undertaking to attend Court on that date, and it is further ordered that the Registrar of this Court be at liberty to accept the security in the sum of Rs. 500 for the filing by the defendant of his petition in insolvency within one month from the date of furnishing of such security and for his appearance in Court when called upon to do so.

(2.) Mahammad Safi deposited Rs. 500 with the Registrar on 22nd July, and the judgment- debtor filed his petition in insolvency on 25 August, and an adjudication order was made. Later, both the judgment-debtor and the surety died. The decree-holder never suggested that the judgment-debtor had not complied with the order, and he has never to this day applied for forfeiture of the surety deposit, but now that the surety has died, and an application is made by the person who is apparently entitled thereto for payment of the Rs. 500 deposit, the decree-holder objects and claims that sum. He argues that the Court ordered, in any event on 22nd July, if not earlier, that the judgment-debtor should file his petition in insolvency within one month and that order was not complied with since the judgment-debtor filed his petition on 25 August. It is admitted that the judgment-debtor was given time until 24 July to deposit the sum of Rs. 500 but it is contended that inasmuch as the judgment-debtor failed to file his petition by 22nd August, the security was forfeited. The relevant sections of the Civil Procedure Code are Secs.55 (4) and 145. Section 55 (4) provides: Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to civil prison in execution of the decree.

(3.) For the applicant it is contended that the words "the Court may either direct the security to be realized or commit to civil prison in execution of the decree" give the Court a discretion as to whether or not it will order the security to be realized. Assuming that there is such a discretion I have no doubt that the Court would not, in the circumstances disclosed, have ordered the security to be realized. From the affidavit of Shaik Mahammad Ameen it appears that the judgment-debtor deposited Rs. 50 for his costs with the official assignee on 14th August, and his books of account on 17 August, and signed the petition in insolvency on 20 August, and the failure to present the petition was due to "inadvertence" on the part of his attorney. Section 145 provides so far as is material: Where any person has become liable as surety ... for the fulfilment of any condition imposed on any person. . . the decree or order may be executed against him to the extent to which he has rendered himself personally liable....